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Wednesday, October 16, 2019  Spokane, Washington  Est. May 19, 1883
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Eye On Boise

Senate leaders from both parties request to intervene in grocery tax case, but solely on constitutionality of the bill

Both the Republican and Democratic leadership of the Idaho Senate have filed a joint petition to intervene in the pending lawsuit from 30 state lawmakers challenging the validity of Gov. Butch Otter’s veto of legislation to repeal Idaho’s 6 percent sales tax on groceries, but the Senate leaders are focused on just one issue: An argument that Gov. Butch Otter’s attorneys suggested he’ll raise about whether the bill violated the Idaho Constitution in the first place.

The Idaho Supreme Court earlier granted Otter intervenor status, allowing him to submit legal arguments and participate in the oral arguments in the case, which initially was filed just against Idaho Secretary of State Lawerence Denney, calling for him to certify the bill as law. In Otter’s legal arguments to the courts, he suggested in a footnote that in addition to defending the validity of his veto, he also would raise the question of the bill’s constitutionality, under the Idaho Constitution’s clause that requires revenue-raising legislation to originate in the House.

In this case, the bill, HB 67a, started in the House as an income-tax cut measure. The House passed it and sent it to the Senate, but the Senate twice amended the bill, transforming it entirely into a grocery tax repeal bill. The Senate then sent the amended bill back to the House, which approved it.

“The language of the bill generates revenue and did not originate in the House,” the governor’s attorneys wrote in the footnote.

If Otter were successful in that argument, the Senate leaders argue, it “would potentially eliminate the Senate Leadership’s legislative authority to amend ‘revenue raising bills’ and the corresponding effect on the legislative process would be widespread and immediate.”

The Senate leaders are represented in their filing by private attorney William G. Myers of the law firm Holland & Hart.

The 30 state lawmakers who sued – including two members of the House GOP leadership, but no members of the Senate leadership from either party – contended that Otter’s April 11 veto was too late, falling after a 10-day deadline. The Idaho Constitution gives the governor 10 days after adjournment to sign or veto bills – or they become law without his signature – but the Idaho Supreme Court held in 1978 that the clock starts ticking on that 10-day deadline for post-legislative session vetoes not when the Legislature adjourns for the year, but when the bill actually is presented to the governor. The high court held that that interpretation was necessary to avoid giving the Legislature the ability to evade the governor’s veto power simply by waiting to deliver bills to him until the deadline was past.

Legislative rules require bills to be presented to the governor within five days, but only the Legislature enforces those rules, and it could change them at any time.

The 30 lawmakers want the court to overturn its 1978 ruling with a “strict constructionist” reading of the words in the state Constitution, and rule that the 10-day clock starts ticking when lawmakers adjourn. Otter argued that if the court agrees with that, it should apply a similar analysis to whether the bill was constitutional in the first place.

The Senate leaders are asking the court to either make them intervenor parties in the case, like Otter, or allow them to file a friend-of-the-court brief and participate in oral arguments, solely on the issue of any constitutional challenge to the process by which the bill was approved.

If the 30 lawmakers are successful in their legal challenge to the veto, Idaho's sales tax on groceries would be repealed.

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Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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